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Twenty-nine congressional Democrats weighed in on the side of the FCC in the litigation over the agency's controversial net neutrality rules.

The Democrats' filing was among a slew of friend-of-the-court briefs submitted Sept. 21 in support of the Federal Communications Commission's decision to reclassify broadband Internet service providers as telecommunications services. The lawmakers argued that the U.S. Court of Appeals for the District of Columbia Circuit should defer to the FCC on the matter (United States Telecom v. FCC, D.C. Cir., 15-1063, amici briefs filed 9/21/15).

The Democrats' brief expounded on congressional intent—which both sides claim supports their position.

“The FCC has done precisely what Congress intended the Commission to do—classify broadband Internet access service according to its best understanding of the technology of the day, and how consumers use that technology,” said the lawmakers, headlined by Senate Commerce, Science and Transportation Committee member Edward Markey (D-Mass.) and House Energy and Commerce Communications and Technology Subcommittee ranking member Anna Eshoo (D-Calif.).

The lawmakers said engagement with the “plain language of the statute in the way that Congress intended for the FCC and the courts to read it” must lead to the conclusion that Internet service providers may be classified as Title II telecommunications services as the term was intended in the 1996 Telecommunications Act.

“Congress crafted the definition of ‘telecommunications service' in the 1996 Act to make the term applicable to rapidly changing telecommunications technologies and markets on a technologically neutral and forward-looking basis. It was Congress’s intent, moreover, to preserve the FCC’s authority to forestall threats to competition and innovation in basic telecommunications services, even as the technologies used to offer those services evolved over time,” the brief said.

The ISPs and trade groups disputing the use of Title II as a legal foundation for the commission's net neutrality rules have argued over the course of the agency's rulemaking process and in the docket that the FCC's actions violated congressional intent.

Consumer Definition

A number of parties underscored the FCC's legal authority to alter its policy position on whether broadband ISPs may be classified as either Title I information services or as telecom services.

Tim Wu, a telecommunications law professor at Columbia Law School, said in his brief that the FCC has repeatedly “reexamined and reclassified services in light of changing market conditions and technical realities,” and therefore should have its reclassification order upheld by the court.

Other amici, including the lawmakers, said the current “consumer definition” of the provision of broadband Internet access services (BIAS) as one that enables people to access content and services offered by edge providers, should support the FCC's reclassification. ISPs have argued in the docket that their provision of BIAS cannot be separated from the provision of Title I information services.

“ISPs are the computer-aided, faster versions of Federal Express, UPS, or Union Pacific,” the Writers Guild of America, West, Inc., Future of Music Coalition and National Alliance for Media Arts and Culture said in their joint brief.

A collective of public interest groups—including Public Knowledge and Free Press, both advocates of Title II reclassification rules—said in their joint brief that the FCC's conclusion in its rules on the “independence of transmission from information deserves deference” from the court.

“It is moreover consistent with the intuitive experience many of us have every day: access to the Internet is separate from what we do when we get there,” the groups added.

Internet Conduct Standard

They also broached the Internet conduct standard, one of the most controversial components of the FCC's Open Internet rules, and one which ISPs have said is overly vague and unlikely to survive judicial review. The public interest groups said arguments against the possibility of unreasonably application of the general conduct rule in the future is “premature and without foundation” since companies can seek advisory opinions from the agency.

A number of telecommunications analysts have cautioned that the provision could stymie innovation since an advisory opinion wouldn't be binding on the commission, thereby making companies reluctant to engage in what might be deemed inappropriate services or conduct at a later date.

The public interest groups, however, said petitioners' criticism of the vagueness of the general conduct standard, subject to case-by-case elaboration, “rings hollow, given that many Petitioners or their members previously advocated a case-by-case regulatory approach under other sources of authority,” in reference to comments by Verizion Communications Inc. and CenturyLink in July 2014.

Title II opponents will get a chance to respond to the FCC's and its amici's claims in their reply briefs expected Oct. 5.

To contact the reporter on this story: Lydia Beyoud in Washington at lbeyoud@bna.com

To contact the editor responsible for this story: Keith Perine in Washington at kperine@bna.com

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